Italy

• Author: Antonella Capria, Edward Ruggeri, and Francesca Libera Falco
• Pages: 605-630

CHAPTER 31

Italy

ANTONELLA CAPRIA, EDWARD RUGGERI, AND FRANCESCA LIBERA FALCO

I. Introduction

In Italy, the fundamental rights and the organization of the national govern-

ment’s powers are enshrined in the constitution, which entered into force in

1948.1 However, the protection of the environment was given explicit consti-

tutional relevance only in 2001.2

In the environment sector, as a general rule, the national government is

charged with adopting general and technical legislation, while the regional

governments, such as that of Tuscany, are empowered to adopt the regula-

tions within their devolved competencies and planning activities. On the

other hand, municipalities are primarily responsible for the protection and

management of the environment, and the provincial governments retain

monitoring and supervision powers.3

Although the above-mentioned allocation of responsibilities may seem

quite clear-cut, over the years the environment has been the center stage of a

“tug of war,” mainly between the central and regional governments. In prac-

tice, at first, the responsibilities and powers relating to the environment were

centralized (1980s); subsequently they were partially devolved to the regional

governments (1990s).4 Currently, following the amendment of the constitu-

tion in 2001, the national government has regained its primacy, with particu-

lar regard to the legislative powers. In particular, the national government

retains exclusive legislative powers for the protection of the environment

and the nation’s cultural heritage. Regional governments may not impose a

lower level of environmental protection than that provided by the national

government in Rome.5

At the national level, the first step toward the centralization of func-

tions occurred with the creation of the Environment Ministry in 1986.6 The

ministry, through its various departments,7 is entrusted with carrying out

the national government’s functions concerning environmental protection.8

Finally, the Environment Ministry supervises and promotes coordination

between the various levels of environmental governance, both at the

national and European Union (EU) level. The Environment Ministry obtains

605

technical and scientific support from the Institute for Environmental Pro-

tection and Research (Istituto Superiore per la Ricerca e la Protezione Ambien-

tale, ISPRA), which is subject to its direction and control.9 It is also useful

to note that, in general, the national government may step in for the

regional, provincial and municipal authorities in case of a breach of EU

legislation or danger to public safety, or when unity of the legal system or

protection of the essential levels of the services concerning civil and social

rights so require.10

On the other hand, the regions have wide planning and monitoring

responsibilities within their territories, coupled, in some cases, with authori-

zation powers. In particular, the regions are entrusted with legislative pow-

ers in order to increase the value of cultural heritage and the environment,

without impacting to the national government’s ability to determine relevant

fundamental principles.11 Moreover, the regions may enact statutes necessary

to implement and/or integrate national legislation. The regional and provin-

cial environmental protection agencies (agenzie regionali e provinciali per la pro-

tezione dell’ambiente, ARPA and APPA) are the competent authorities for

technical, scientific, and monitoring activities.12 ARPA and APPA are subject

to the direction and control of ISPRA.

Municipalities, pursuant to the constitution,13 are responsible for all the

administrative functions concerning the actual management of the environ-

ment, except when uniformity requires conferral of these functions to the

provinces, regions, or the national government, on the basis of the principles

of subsidiarity, differentiation, and suitability.14 As mentioned above, the

Supreme Constitutional Court has been instrumental in upholding environ-

mental protection, even before its formal inclusion in the constitution. The

other judiciary bodies that are competent for environmental matters are

mainly the regional administrative tribunals (tribunali amministrativi region-

ali, TAR) and the Council of State (Consiglio di Stato (Rome)). The former

entered into function, in every region, in 1974, and handle claims against

governmental actions having a regional scope.15 Their rulings can be

appealed to the Council of State. The Council of State also has advisory

duties both concerning specific inquiries from the public administration and

those arising during the legislative process. Over the years, the TAR and the

Council of State have had the complex task of interpreting national and

regional laws in accordance with the constitution and the EU legal frame-

work, including judgments of the European Court of Justice (notably, the

definition of waste).

Finally, with regard to the national environmental regulatory framework,

practitioners should know that the majority of the relevant provisions are

located in Decree No. 152 of April 3, 2006 (Environmental Code). The Environ-

mental Code regulates, inter alia, air emissions, environmental impact assess-

ment, strategic environmental assessment, soil and water protection from

pollution and management of the water resources, integrated pollution pre-

vention and control (IPPC), waste management, cleanup and remediation pro-

cedures, and environmental damage. On the other hand, the Environmental

606 INTERNATIONAL ENVIRONMENTAL LAW